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    Filed United States Court of Appeals Tenth Circuit

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    This document is an order from the United States Court of Appeals for the Tenth Circuit granting the government's motion to enforce an appeal waiver in Alberto Verasa-Barron's plea agreement. The defendant pleaded guilty to distributing methamphetamine and was sentenced within the guidelines range. Pursuant to the plea agreement, the defendant waived his right to appeal except for certain exceptions, none of which applied. The court considered whether enforcing the waiver would result in a miscarriage of justice, but found the defendant did not argue any of the limited situations that could result in a miscarriage of justice, such as an impermissible factor in sentencing or a sentence exceeding statutory limits. The defendant argued ineffective assistance of counsel regarding the waiver, but

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    Filed United States Court of Appeals Tenth Circuit

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    This document is an order from the United States Court of Appeals for the Tenth Circuit granting the government's motion to enforce an appeal waiver in Alberto Verasa-Barron's plea agreement. The defendant pleaded guilty to distributing methamphetamine and was sentenced within the guidelines range. Pursuant to the plea agreement, the defendant waived his right to appeal except for certain exceptions, none of which applied. The court considered whether enforcing the waiver would result in a miscarriage of justice, but found the defendant did not argue any of the limited situations that could result in a miscarriage of justice, such as an impermissible factor in sentencing or a sentence exceeding statutory limits. The defendant argued ineffective assistance of counsel regarding the waiver, but

    Original Description:

    Filed: 2013-05-30 Precedential Status: Non-Precedential Docket: 13-3025

    Original Title

    United States v. Verasa-Barron, 10th Cir. (2013)

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    This document is an order from the United States Court of Appeals for the Tenth Circuit granting the government's motion to enforce an appeal waiver in Alberto Verasa-Barron's plea agreement. The defendant pleaded guilty to distributing methamphetamine and was sentenced within the guidelines range. Pursuant to the plea agreement, the defendant waived his right to appeal except for certain exceptions, none of which applied. The court considered whether enforcing the waiver would result in a miscarriage of justice, but found the defendant did not argue any of the limited situations that could result in a miscarriage of justice, such as an impermissible factor in sentencing or a sentence exceeding statutory limits. The defendant argued ineffective assistance of counsel regarding the waiver, but

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Download as pdf
    18 views4 pages

    Filed United States Court of Appeals Tenth Circuit

    Uploaded by

    Scribd Government Docs
    This document is an order from the United States Court of Appeals for the Tenth Circuit granting the government's motion to enforce an appeal waiver in Alberto Verasa-Barron's plea agreement. The defendant pleaded guilty to distributing methamphetamine and was sentenced within the guidelines range. Pursuant to the plea agreement, the defendant waived his right to appeal except for certain exceptions, none of which applied. The court considered whether enforcing the waiver would result in a miscarriage of justice, but found the defendant did not argue any of the limited situations that could result in a miscarriage of justice, such as an impermissible factor in sentencing or a sentence exceeding statutory limits. The defendant argued ineffective assistance of counsel regarding the waiver, but

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    of 4

    FILED

    United States Court of Appeals


    Tenth Circuit
    UNITED STATES COURT OF APPEALS

    FOR THE TENTH CIRCUIT

    May 30, 2013


    Elisabeth A. Shumaker
    Clerk of Court

    UNITED STATES OF AMERICA,


    Plaintiff-Appellee,
    v.
    ALBERTO VERASA-BARRON,

    No. 13-3025
    (D.C. No. 5:11-CR-40044-JAR-9)
    (D. Kan.)

    Defendant-Appellant.
    ORDER AND JUDGMENT*

    Before KELLY, EBEL, and TYMKOVICH, Circuit Judges.

    This matter is before the court on the governments motion to enforce the
    appeal waiver contained in defendant Alberto Verasa-Barrons plea agreement. The
    defendant pleaded guilty to knowingly and intentionally distributing
    methamphetamine, in violation of 21 U.S.C. 841(a)(1). The district court sentenced

    This panel has determined that oral argument would not materially assist the
    determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The
    case is therefore ordered submitted without oral argument. This order and judgment
    is not binding precedent, except under the doctrines of law of the case, res judicata,
    and collateral estoppel. It may be cited, however, for its persuasive value consistent
    with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

    him at the bottom of the applicable advisory guidelines sentencing range to


    87 months imprisonment.
    Pursuant to his plea agreement, [t]he defendant knowingly and voluntarily
    waive[d] any right to appeal . . . any matter in connection with [his] prosecution, the
    defendants conviction, or the components of the sentence to be imposed . . .
    including the length and conditions of supervised release. Attach. to Mot. to
    Enforce, Plea Agmt. at 14. The defendant further knowingly waive[d] any right to
    appeal a sentence imposed which is within the guideline range determined
    appropriate by the court. Id. at 15. In other words, the defendant waive[d] the
    right to appeal the sentence imposed in this case except to the extent, if any, the court
    departs or varies upwards from the applicable sentencing guideline range determined
    by the court. Id. The plea agreement included additional exceptions to the appeal
    waiver language, providing that the defendant would be released from the waiver if
    the government appealed his sentence and stating that the defendant did not waive
    any subsequent claims with regards to ineffective assistance of counsel or
    prosecutorial misconduct. Id.
    The government filed a motion to enforce the plea agreement under
    United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004) (en banc) (per curiam). In
    evaluating a motion to enforce a waiver, we consider: (1) whether the disputed
    appeal falls within the scope of the waiver of appellate rights; (2) whether the

    -2-

    defendant knowingly and voluntarily waived his appellate rights; and (3) whether
    enforcing the waiver would result in a miscarriage of justice. Id. at 1325.
    In his response to the governments motion, the defendant concedes that his
    appeal falls within the scope of the waiver. He does not argue that the waiver was
    not knowing and voluntary. Thus, we need not address that factor. See United States
    v. Leon, 476 F.3d 829, 831 (10th Cir. 2007) (per curiam). But the defendant does
    argue that enforcement of the waiver would result in a miscarriage of justice. A
    miscarriage of justice occurs [1] where the district court relied on an impermissible
    factor such as race, [2] where ineffective assistance of counsel in connection with the
    negotiation of the waiver renders the waiver invalid, [3] where the sentence exceeds
    the statutory maximum, or [4] where the waiver is otherwise unlawful. Hahn,
    359 F.3d at 1327 (quotation omitted). This list is exclusive: enforcement of an
    appellate waiver does not result in a miscarriage of justice unless enforcement would
    result in one of the four situations enumerated above. United States v. Polly,
    630 F.3d 991, 1001 (10th Cir. 2011) (quotations omitted).
    The defendant does not contend that the district court relied upon an
    impermissible factor, or that his sentence exceeded the statutory maximum. He
    argues that he received ineffective assistance of counsel in connection with the
    negotiation of the appeal waiver. But the defendant acknowledges that this
    contention should be raised in a collateral proceeding under 28 U.S.C. 2255, rather
    than on direct appeal. See United States v. Galloway, 56 F.3d 1239, 1242 (10th Cir.
    -3-

    1995) (recognizing that, with rare exceptions, claims of constitutionally ineffective


    counsel should be brought on collateral review). This rule applies even where a
    defendant seeks to invalidate an appellate waiver based on ineffective assistance of
    counsel. United States v. Porter, 405 F.3d 1136, 1144 (10th Cir. 2005).
    Accordingly, we grant the governments motion to enforce the appeal waiver
    and dismiss the appeal.
    Entered for the Court
    Per Curiam

    -4-

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